Judgment: approved by the Court for handing down
(subject to editorial corrections) Ref KERP36B9
Delivered: 17-04-02
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
IN THE MATTER OF AN APPLICATION BY JEAN MCBRIDE FOR JUDICIAL REVIEW
KERR I
Introduction
This is an application by Jean McBride, the mother of Peter McBride, deceased, for judicial review of the decision of an Army Board to retain in the army Guardsmen James Fisher and Mark Wright. She also challenges decisions taken by the Ministry of Defence in relation to the arrangements made for the Board, in particular, the failure to put certain material before the Board for its consideration, the failure to provide her with the representations made to the Board by the guardsmen and the refusal to allow her to be represented at the oral hearings conducted by the Board.
The two soldiers were convicted of the murder of Peter McBride. The background to their conviction, the dismissal of their appeals against conviction and the decision of an earlier Army Board that they should be allowed to resume their army careers have been outlined in the judgement that I gave on the challenge to that decision. It is reported at [1999] NI 299.
A newly constituted Army Board considered whether the two guardsmen should be retained in the army. On 21 November 2000 the Board decided that they should be retained. It is this decision that is challenged in the present proceedings.
The correspondence
In a letter of 15 November 1999 the Ministry of Defence informed the Pat Finucane Centre (which had been making representations on behalf of the applicant to the Ministry) that the Army Board would, "given the exceptional nature of [ the ] case,... as a matter of courtesy to Mrs McBride, be willing to receive a written representation from her". On 24 November 1999 Messrs Madden & Finucane, solicitors, who had acted on behalf of Mrs McBride in her judicial review application, wrote to the Ministry of Defence. They informed the Ministry that they were instructed on her behalf and that the Ministry's letter of 15 November 1999 to Mr O'Connor had been passed to them. The solicitors renewed a request already made by the Pat Finucane Centre that Mrs McBride be allowed to make oral representations at the Army Board when the retention of the soldiers in the army was to be considered; they also asked for details of the composition of the Board and for full disclosure of the material that was to be placed before the Board. The Ministry responded by letter of 21 December 1999 from B T Burton, Head of Adjutant General Secretariat. This letter contained the following passages: -
"Throughout the time that the question of the discharge of Guardsmen Fisher and Wright has been under consideration, the Ministry of Defence has been sensitive to the position of Mrs McBride. For that
reason, and, as a personal courtesy, she has been kept informed of progress and her representations were included for the Board's consideration when it last considered the matter.
It is important however, to recognise that the consideration by the Army Board of the question of discharge does not arise in the course of proceedings to which Mrs McBride is a party. The Army Board is a 'competent military authority' for the purposes of discharge under the Queen's Regulations when considering this matter. The Queen's Regulations do not provide for the formal involvement in the decision making process of someone in Mrs McBride's position. I mention this because the overall tone of your letter suggests that your approach to this matter is on the basis that Mrs McBride is a party to litigation. With respect, she is not.
The composition of the Board has yet to be determined. None of those who sat will do so again and care will be taken by the Board to ensure that they approach the matter entirely afresh as is required by the judgment of Kerr J. We do not believe that it would be appropriate to inquire into the previous experience of Board members in dealing with discharge cases.
The Army Board exceptionally will consider any representations you may wish to make on behalf of Mrs McBride why the guardsmen should be discharged. It would be helpful if you could provide a comprehensive new document, alternatively indicate which of your previous submissions you would like them to consider.
I enclose a list of documents that will be provided to the Army Board. You have all of them except the last two, which are short reports from the guardsmen's Commanding Officer. Given their confidential nature, we would be grateful if you would handle them accordingly. A copy of the brief to the Board will also be made available as a courtesy to facilitate any representation that Mrs McBride decides to make. Any representations received from the guardsmen or from your client will also be put before the Army Board. In addition the statistics dealing with retention following conviction will be made available to the Board.
The question of an oral hearing would be for the Board itself but I am bound to say that at present we can see no legal basis which would entitle your client to make oral representations.'
On 10 January 2000 Mr Burton sent a copy of the brief prepared for the Army Board to the applicant's solicitors. As we shall see below, reference was made in the brief to a number of annexed documents. It appears, however, that the only documents (apart from the brief itself) that were enclosed with Mr Burton's letter were the confidential reports from the guardsmen's commanding officer. The applicant had, of course, received documents presented to the previous Army Board. With his letter of 21 December Mr Burton had enclosed a list of documents that were to be provided to the new Board and he stated that the only documents Madden & Finu cane did not then have were the commanding officer's confidential reports. Having supplied these with the letter of 10 January, Mr Burton stated that these completed the list of papers attached to the brief. Again, however, as we shall see below, rather more documents than these were ultimately attached to the brief.
In his confidential report on Fisher, the commanding officer, Lieutenant Colonel Cubitt, said: -
"Guardsman Fisher is in the Milan Platoon of 1 Battalion Irish Guards - an Armoured Infantry Battalion. In October he completed a six-month operational tour in Macedonia and Kosovo and subsequent operations.
He is a mature, pleasant and reliable soldier. He is intelligent and is skilled in his role as a Milan operator (the latter is notable given that he has not used Milan before the start of the year). He works hard both in Barracks and in the field. He gets on well with the other members of his platoon who respect him as an experienced and capable soldier.
His performance in Kosovo was of a very high standard. His experience and maturity showed through and gave him an above average ability to operate sensibly in the novel and sensitive situations encountered. He was consistently competent and gave confidence to those more junior to him.
He is an excellent guardsman. He has leadership qualities and would make a good Lance Corporal with the potential to progress further."
In relation to Wright, Lieutnant Colonel Cubitt said: -
"Guardsman Wright is in the Mortar Platoon of 1 Battalion Irish Guards - an Armoured Infantry Battalion. In August he completed a six-month operational tour in Macedonia and Kosovo with the Kings Royal Hussars Battle Group. The period included the intensive training in Macedonia, the initial entry into Kosovo and subsequent operations.
He is a mature and confident soldier. He adapted well to his new role in the Mortar Platoon. He is intelligent, professional and reliable as well as being gregarious and enthusiastic. Many of the other guardsmen in his platoon look to him for guidance.
He performed very well in Macedonia and Kosovo. On several occasions he substituted for others in Lance Corporal posts, and showed himself well able to perform in positions of responsibility. He was very positive and made a significant contribution to the success of his platoon.
He is an excellent guardsman. He has leadership qualities and would make a good Lance CorporaL with the potential to progress further."
On 25 January 2000 Mr O'Connor of the Pat Finucane Centre wrote to the Ministry of Defence. He enclosed four letters from Mrs McBride, Amnesty International, the Committee on the Administration of Justice and the Northern Ireland Human Rights Commission respectively. The letter from Mrs McBride was in the following terms: -
"To the members of the Army Board
As the mother of Peter McBride I would like to express my feelings on the case of the soldiers who murdered my son. This has been going on now for seven years. When Mark Wright and James Fisher were convicted and given life sentences I thought justice had been done. After serving just six years of their sentence they were released back into the British Army. This has caused great hurt to my family and myself. I find it very hard to grieve when I am being told that they are fit to serve in the army again.
Now that I have expressed my feelings on my disappointment with the justice system I would like to tell you as a mother who has lost her only son that the pain never goes away. It doesn't get any easier as time goes by. It actually gets harder. Peter has left two young daughters who will never know him and I think that is very unfair. Peter was just a young lad when he was murdered. Not only are his daughters missing out on him but he is missing out on both their lives.
I would like you to consider the feelings of our family when you are making a decision on the case of these two soldiers. To allow Wright and Fisher to remain in the army is to tell me that I wasted 18 years of my life loving and raising a son. Do the decent thing.
From a broken hearted mother"
The letter from the Northern Ireland Human Rights Commission (dated 9 December 1999) was to John Spellar MP, a Minister of State in the Ministry of Defence and made a number of points about the judgement of Kelly J (the trial judge in the murder case). The letter from Amnesty International, which was dated 6 December 1999, was also to Mr Spellar. It included the following passage: -
"Amnesty International opposes the reinstatement of soldiers, convicted of murder, to similar military duties where they may commit serious human rights violations again. The exceptional reinstatement of these soldiers has been seen as fostering another form of immunity in that soldiers would be led to believe that, no matter how serious the human rights violation committed, they would still be reinstated in the armed forces. [Amnesty] is concerned that if the Army Board again decides not to discharge the soldiers convicted of murder while on duty this would be incompatible with, and would undermine, effective redress for the victim's family."
The letter from the Committee on the Administration of Justice was in the following terms: -
"CAJ is an independent non-governmental organisation which is affiliated to the International Federation of Human Rights (IFHR). CAJ monitors the human rights situation in Northern Ireland and works to ensure that whoever has responsibility for this jurisdiction respects and protects the rights of all. We are opposed to the use of political violence.
One of the areas that we have worked on in the past has been the use of lethal force by members of the security forces. We have been concerned for a number of years at the apparent lack of accountability of members of the security forces who have been responsible for killings committed while on duty. In that capacity we have monitored a number of cases where members of the army in particular have been tried for murder.
We are aware that the Northern Ireland judiciary have suggested that an intermediary offence be instituted which would allow members of the security forces to be charged with an offence less than murder in circumstances where they have been responsible for a killing committed while on duty. A number of such killings have occurred in circumstances where the army or police officer has claimed that he has made split second judgments in very difficult circumstances There is little doubt that judicial sympathy for soldiers and police officers involved in such incidents resulted in a large number of acquittals. However, in the Fisher and Wright case we noted the comments of the trial judge, Lord Justice Kelly, when he said that even if a verdict of manslaughter had been open to him he doubted if it would have fitted his findings in the case. While the Court of Appeal resiled from that position to some extent we feel that it is noteworthy that unlike other cases, where soldiers have been convicted of murder, the decisions made by Guardsmen Wright and Fisher were not made in difficult circumstances or necessarily in great haste.
We feel that given the above, the decision to release the two soldiers after serving in the region of five years, undermined public confidence in the rule of law and its applicability to all, including agents of the state, as equals. A decision to admit the two back into the army would further undermine public confidence. It cannot in our view be correct that two public servants who commit murder while on duty, and in circumstances where there is little judicial sympathy for their position, be readmitted to their posts."
On 19 January 2000 Mr Burton wrote again to Madden & Finucane enclosing a copy of an addendum that was to be added to the brief to the Board setting out relevant statistics in relation to the number of officers and soldiers who had been discharged from the army in the ten year period from 1989/90 to 1999/2000. On 11 April 2000 a further letter from Mr Burton to Madden & Finucane enclosed another addendum to the briefing note for the Board comprising "Retention Statistics & Procedural Note" and a copy of the note provided to the Guardsmen's legal advisers setting out the customary procedures of the Board. The first of these documents recorded that between the years 1990 and 1999 (inclusive) 37 members of the armed forces had been retained in the army "because exceptional reasons were present as allowed for under Queen's Regulations".
On 19 April 2000 the applicant's solicitors replied to the letter of 11 April 2000, asking inter alia for a copy of the representations made on behalf of Fisher and Wright. The letter also contained the following paragraphs: -
"You will recall that we sought a list of the members who will sit on the Board, together with details of their experience in determining cases of retention of soldiers who have been convicted of serious criminal offences. Your reply in December stated that "the composition of the Board has yet to be determined". Your letter of 10th January enclosed the Army Board's brief, so we trust that its composition has now been set for some time. Consequently, we look forward to your urgent response regarding the composition of the Board.
…
During the hearing of our client's application for judicial review, our counsel asked counsel appearing for the Ministry of Defence for details of any other soldier who had benefited from the exceptional provisions, and had been retained. However, no details were provided to our counsel or to the court. Accordingly, it was then submitted that no soldier sentenced to imprisonment, other than Thain & Clegg [two soldiers who had been convicted of the murder of civilians] (and Fisher & Wright) had been retained in the army. If the assertion [is] that a limited number of soldiers have been retained in the army - other than the four referred to above - we would expect to receive full details. In the absence of you providing any such details, we assume you are aware of no such case.
In any event, it is of course abundantly clear to us that there is no soldier who has been convicted of murder, who has been retained in the army, save Thain & Clegg. However, if we are wrong in this, please let us know as a matter of urgency.
We would also be obliged to receive your clarification on our client's entitlement to make oral submissions, with the benefit of legal advice and representation. You have stated that you "can see no legal basis which would entitle your client to make oral representations", but the question of an oral hearing "would be for the Board itself'. Does this mean that the Board will consider this issue, as a preliminary point, prior to considering the applications for discharge? If not, when? We submit that our client is a person entitled to make oral submission, and to be legally represented in doing so. Her interest in so doing is illustrated by her being provided with the papers before the Board, being given the right to make written submissions, and the fact that following the last decision of the Army Board, the Minister met with her in person regarding the decision. Moreover our client's interest in the Army Board's proceedings is apparent from the fact that she had sufficient standing to pursue a judicial review application of the first Army Board decision, which was successful and was not appealed by the Ministry of Defence. There is nothing in Queen's Regulations which prevents our client's attendance and representation, and consequently, we submit there is nothing to preclude it. If you or the Board considers there to be any reason for refusing, we would be obliged if you would clearly state those reasons,
Finally, we note that we have not received copies of the submissions advanced by or on behalf of Fisher & Wright. We would appreciate their prompt receipt and will revert to you thereafter.
Pending resolution of the matters raised above, we adopt and support the submissions advanced that Fisher and Wright should be discharged from the army on the following basis:
Retention of the two soldiers convicted of murdering Peter McBride is so obviously irreconcilable with the provisions of the European Convention on Human Rights, (notably Articles 2 13 and 14) that such a decision would amount to a flagrant, indeed contemptuous disregard of its provisions.
Such a decision would imply, at least, official tolerance of the use of murderous lethal force in Northern Ireland since the only known beneficiaries of the 'exceptional circumstances' dispensation are soldiers who have murdered Catholic civilians in Northern Ireland. …
This discriminatory treatment is in violation of Article 14, whether read alone or in conjunction with Article 2 of the Convention.
Moreover, such a decision would also be wholly irreconcilable with the Government's oft-repeated commitment to human rights and to the commitments contained in the Good Friday agreement.
No exceptional circumstances have been advanced for the retention in the army of Fisher and Wright.
We rely on the skeleton argument submitted to the court in the judicial review application challenging the original Army Board decision, which was quashed. … Please ensure that this letter and enclosure are placed before the Board."
On 4 May 2000 the Ministry responded saying that the representations made on behalf of the soldiers would not be provided to the applicant's solicitors. The letter also contained the following passage: -
"As to the statistics dealing with the retention of soldiers sentenced to imprisonment, it would appear that you have not yet received [our letter] of 11 April enclosing Addendum 2 to the Board's brief. A further copy is accordingly enclosed, again as a matter of courtesy, together with a copy of Flag P [this was the document that described the customary procedures for the Army Board]. As you will see, Addendum 2 sets out the cases where individuals have been retained, for exceptional reasons, during the last ten years. You will recall that we were unable to produce this material during the judicial review proceedings last year, but we have since then analysed a range of available computer records to show the numbers retained in each year. The information does not include details of particular cases except for Cpl Clegg and Gdsm Fisher and Wright, because that would require a detailed analysis of a significant number of personnel files. We are, however, confident that the named cases are the only instances, in the 10-year period covered, of murder convictions leading to retention. The remaining cases will represent a wide range of lesser offences where the particular circumstances merited retention. If Mrs McBride wishes to comment on either of the enclosed documents, which as Addendum makes clear were prepared at the request of Guardsmen Fisher and Wright, please let me know as quickly as possible, preferably by return.
On the question of oral submissions, it is for the Board to decide, usually at a preliminary meeting, whether to hold an oral hearing. The purpose of such a hearing, if one is considered necessary, is to receive oral evidence from witnesses and/or oral representations from the serviceman or his lawyers - see paragraph 10 of the note on army Board procedures (Brief, flag P). The reason why, unlike the servicemen in this case, Mrs McBride is not entitled to make oral submissions, or to be legally represented in doing so, was explained in my letter of 21 December. For the same reason the Ministry takes the view that your client is not entitled to receive copies of the representations made to the Board by Guardsmen Fisher and Wright.
In my letter of 10 January I sent you as a matter of courtesy a copy of the Board's brief and invited any representations Mrs McBride wished to make. You replied on 21 January enclosing four letters that Mrs McBride wanted the Board to consider. Those letters were disclosed as required to Guardsmen Fisher and Wright for comment and were then incorporated in the Board's brief as Flag N. No other request or representations were submitted on behalf of Mrs McBride, despite a clear request in the 5th paragraph of my letter of 21 December for either a comprehensive new document containing Mrs McBride's representations or alternatively an indication of which of your previous submissions you wished the Board to consider, and the papers were accordingly submitted to the Board members on 7 April.
You conclude your latest letter with eight paragraphs of further representations you wish the Board to consider; moreover, you ask that the Board be supplied with a copy of the entire letter and of the skeleton arguments prepared on 26 May last year for the purposes of the judicial review proceedings. I regret that the Ministry of Defence is not prepared to disrupt the Board's deliberations of the existing papers by asking them to await the soldiers' comments on your letter and enclosure and any necessary legal advice on them from DALS. Furthermore, the Ministry is conscious that Mr Justice Kerr's judgement was given as long ago as 6 September last year, and it is important that the Board completes its reconsiderations without unreasonable delay."
Although the Ministry cited delay and unwillingness to disrupt the Board's deliberations as the reasons for not placing these representations before it, on 25 May 2000 they wrote to the Pat Finucane centre regarding the Army Board's determination in the case as follows: -
"As I have explained previously the Army Board has a number of preliminary issues to decide before it will be possible to address the merits of the case for retention or dismissal. The Board has met to discuss those preliminary issues and is likely to hold another meeting which will be held next month."
Indeed, as I shall discuss below, the Board held its first meeting just one week before the dispatch of this letter and had not yet reached decisions on a number of preliminary matters. A further meeting was held some two and a half weeks later on 11 June 2000.
The Board's decisions
The Board was composed of John Spellar, MP Minister of State for the armed forces, General Sir Mike Jackson KCB, CBE, DSO, Commander in Chief, Land Command and Major General D L Judd, Quartermaster General. As I have noted above, a brief was prepared for the Board. It was dated 3 December 1999 and Brigadier K H Cima prepared it. A number of documents were annexed to the brief and the Board members were adjured to read these in their entirety. They included what was described as "representations made on behalf of Mrs McBride". These were in fact the letters that had been enclosed with Mr O'Connor's letter of 25 January 2000, so it appears that, although the brief is dated 3 December 1999, it cannot have been completed until some time later. In fact, the members of the Board had not been chosen when the brief was prepared; as I have mentioned above, in the letter of 21 December 1999 from Mr Burton to Madden & Finucane, it was stated, "the composition of the Board is yet to be determined". Indeed, as I have already observed, a copy of the brief was sent to Madden & Finucane on 10 January 2000 and plainly it did not contain any representations from or on behalf of Mrs Bride at that stage. It would appear, therefore, that Brigadier Cima had anticipated that Mrs McBride would make representations and that he incorporated the letters from Mr O'Connor some time after they arrived.
An annexure to the brief at Flag 0 contained a number of documents. These were described as "any representations made by or on behalf of the two guardsmen after receiving copies of this brief . ..". The documents included a letter from solicitors acting on behalf of the guardsmen, in which a number of requests were made including that the matter before the Board should be postponed "until after the due appellate process against the convictions has been exhausted". This was a reference to a possible review by the Criminal Cases Review Commission of the convictions of Fisher and Wright. An application was also made that the Board should consider affidavits received in evidence by the House of Lords about the conviction of the guardsmen; these affidavits and other documents generated by the House of Lords' consideration of the matter were also enclosed at Flag 0. Also included in the material at Flag 0 was a document dated 28 March 2000 and entitled "Comments and Recommendation by the Regimental Lieutenant Colonel Scots Guards on the Application for the Discharge of Guardsman J Fisher and Guardsman M D Wright". Major General J P Kiszely MC had prepared this document. In it he made a strong recommendation that the guardsmen should not be discharged from the army or, alternatively, that a decision should be delayed until the matter had been considered by the CCRC.
The date on which the members of the Board were selected has not been disclosed in the material submitted to the court nor has it been revealed when they began their deliberations. It is to be presumed that this was sometime after 28 March 2000 since this was the date on which Major Kiszely made his submission. In any event, a preliminary meeting of the Board took place on 18 May 2000 to consider the various requests made on behalf of Fisher and Wright in the letter from their solicitors of 9 March 2000. It was decided that the Board should hear counsel and accordingly all other matters were deferred until that had taken place.
On 12 June 2000 an oral hearing took place. It is worthy of note that three bundles of documents of which the Board had not been given advance notice were produced by the guardsmen's legal representatives and accepted by the Board. This is, I think, significant in relation to the refusal of Mr Burton on 4 May 2000 to put before the Board the material enclosed with the applicant's solicitors' letter of 19 April 2000. In fact there were not enough copies of the further material submitted on behalf of the soldiers and this was the subject of adverse comment by the Board. Nevertheless, the material was accepted and duly considered by the Board. Lord Campbell of Galloway QC and Mr Lachlan Wilson represented the soldiers. Both made submissions on a number of issues.
The Board met again on 11 July to give further consideration to the submissions made by the guardsmen's lawyers. It refused the application that the hearing be postponed. It acceded to a request for an oral hearing of the guardsmen's claim that they should not be discharged from the army and it directed that the guardsmen should be allowed to address the Board in person or through counsel. It allowed a request that witnesses be called as to the character of the guardsmen but directed that no witnesses as to the facts be called because the Board considered itself bound to accept the facts as found by the trial judge. The Board made a number of other rulings on applications that had been made on behalf of the guardsmen. These included a request that Major General Kiszley be permitted to submit further documents to the Board. The Board's decision on this, as recorded in a minute of July 2000, was as follows: -
"The Board observed that there was no general right for third parties to submit documents or representations direct to the Board. There were special reasons why, exceptionally, Mrs McBride had been given the opportunity to make submissions direct. It was for the Guardsmen and their legal representatives to decide what documents they wished the Board to consider. Accordingly the Board would consider only such documents as were submitted through them."
At the hearing the Board decided that further information should be obtained on previous cases where soldiers had been retained in the army after being convicted of criminal offences. They directed that the reasons for retention in all cases from 1997 onwards should be provided, if possible.
The second and final oral hearing took place on 29 August 2000. Mrs McBride and her legal representatives were not permitted to attend. Before the second oral hearing took place another addendum to the brief, dated 28 July 2000, had been provided to deal with the direction of the Board about information as to the reasons that soldiers had been retained in previous cases. This was not supplied to Mrs McBride or her legal advisers.
The earlier addendum of 7 April 2000 had suggested that a total of 19 had been retained from 1997 onwards. This was corrected in the addendum of 28 July. According to this, only 10 had been retained during this period. (In fact, as we shall see, even that figure requires qualification) Three of the individuals included in the earlier figures had in fact been discharged after serving a sentence overseas and another six were stated to be "computer record errors".
Of the ten cases that remained, four involved offences of assault occasioning actual bodily harm for which sentences ranging from suspended prison sentences to nine months imprisonment were imposed. Two were driving offences; in one of these a suspended sentence was imposed, while in the other there was a sentence of six months but in that case the comment was made that the accused had not been properly represented. There were three cases of common assault or affray. On both charges of affray a sentence of six months imprisonment or youth custody was imposed. Significantly, in the case of the defendant who had been sentenced to six months imprisonment, he had not actually been retained in the army. The comment made was that "a case was made to retain him [but] he chose to leave the service". In the case of common assault the defendant had already given notice of her intention to leave the service "on maternity grounds" and was undergoing resettlement. She was permitted to remain until that was completed. The final case involved a failure to pay maintenance.
On a proper analysis, therefore, the information provided in the final addendum reveals that there were only eight cases of true retention in the period from 1997 to 2000, none of which involved a serious offence and for none of which was a substantial prison sentence imposed.
The oral hearing in August was conducted in the presence of the two guardsmen and their legal representatives. During the hearing evidence was given by both soldiers, by Lieutenant Colonel W C Cubitt OBE, their current commanding officer and by Major General Kiszley. The Board also heard submissions on behalf of the guardsmen from Lord Campbeil. As well as the brief prepared by Brigadier Cima and the documents annexed to it, the Board considered the three addenda dealing with cases of retention in "exceptional cases", six bundles of documents submitted by the guardsmen's legal representatives, a transcript of the preliminary hearing on 12 June 2000 and the minutes of proceedings dated 31 May 2000 and July 2000.
The Board approached its task on the basis that there was a presumption that a soldier sentenced by a civil court to a period of imprisonment would be discharged unless there were exceptional reasons that made his retention desirable. The Board considered itself bound by the findings of the trial judge, Kelly LJ. Apparently, Lord Campbell had argued that the Board was entitled to take into account that the soldiers were continuing to dispute their guilt and that they had applied to the Criminal Cases Review Commission to consider their cases with a view to having them referred back to the Court of Appeal in Northern Ireland. This argument was firmly rejected.
In its record of the proceedings, the Board referred to its consideration of Mrs McBride's representations. The following passage appears in this section of the record of proceedings: -
"While technically the future of the two guardsmen in the army was a matter between them and the Board as, in effect, their employer, the Board thought it entirely appropriate in the circumstances that Mrs McBride had been given the opportunity to express her views. The Board believed that her views deserved serious consideration. Its duty was to consider as objectively as it could all matters relevant to the guardsmen's future in the army, both those which pointed towards, and those against, their retention."
The Board then proceeded to consider individually each of the representations made by Northern Ireland Human Rights Commission, Amnesty International and the Committee on the Administration of Justice.
The Board held further meetings after the oral hearing in August and finally concluded on 21 November 2001 that there were exceptional reasons justifying the retention of the guardsmen in the army. These were the reasons given by the Board: -
"18. The Board decided in the light of further discussion after the hearing and at subsequent meetings that the following factors taken together did amount to exceptional reasons:
19. Having carefully balanced the reasons listed in paragraph 18 above against the fact that the guardsmen had been convicted of one of the most serious crimes known to the law, and also against:
(1) had sufficient time to decide whether or not to fire and, although both were aware that they had no justification for doing so, both discharged aimed shots at Mr McBride knowing he posed no threat to them;
(2) [were not] in any panic situation or in any situation which called for split second reaction;
(3) lied about critical elements of their version of events ... and deliberately chose to put forward a version which they both knew to be untrue;
1. Procedural impropriety
On behalf of the applicant Mr Treacy QC submitted that the proceedings before the Army Board were procedurally unfair in the following respects: -
Mr Treacy argued that the decision to allow the soldiers to resume their military careers constituted a violation of the applicant's rights under Article 2 of the European Convention on Human Rights and Fundamental Freedoms In advancing this argument he relied on statements of the European Court of Human Rights relating to the procedural safeguards that are concomitant with the substantive right enshrined in the article. He referred in particular to the decision of ECtHR in Kelly v UK [2001] EHRR. That case involved the claim that there had not been a proper investigation into the circumstances of the death of Mr Kelly. In confirming that one of the essential procedural safeguards of Article 2 of the Convention was that there should be an effective official investigation of the deaths of individuals killed by force, ECtHR said at paragraph 94 of the judgment: -
"The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility."
Mr Treacy argued that the onerous obligations cast on the State by Article 2 (which include accounting for the operational planning that may have led to the death and "putting in place a series of investigative and accountability mechanisms which vindicate the right to life of a particular deceased") reflect a broader duty of the State to protect the lives of its citizens generally. The procedures that follow the taking of a life are critical in ensuring the protection of other lives in the future, he suggested, and the decision of the Army Board fell to be considered against that background. That protection of the State's citizens was undermined, Mr Treacy claimed, by the decision of the Army Board to allow the two soldiers to continue their army career because it diluted the official sanction that should have marked the wrongful taking of the life of Peter McBride.
By way of alternative to these submissions, Mr Treacy claimed that, if Article 2 was not engaged, the Board's decision was "within the ambit" of that provision and the Board's decision in reinstating the guardsmen was discriminatory of the applicant for the purposes of Article 14 of the Convention. In particular, he said, it represented less favourable treatment of Northern Irish citizens than citizens of Great Britain. He suggested that it was inconceivable that the guardsmen would have been accepted back in the army had they been convicted of murder of a civilian in any other part of the United Kingdom.
3. Irrationality
Mr Treacy submitted that the decision of the Army Board was irrational. He suggested that no one who had a conviction for murder could hope to secure a position in the security forces; indeed, he said, it would be impossible for them to obtain a public service vehicle licence or a firearms licence. Yet these soldiers who, despite their training, had committed murder, were being allowed to continue in a highly responsible career that involved the carrying of lethal weapons.
He contrasted the position of these soldiers with those who were convicted of drugs offences. The army operates a zero tolerance policy in relation to drugs. If a soldier is sentenced for a drugs offence, he is automatically discharged. It was inconceivable, therefore, that those convicted of murder should be retained.
In no other occupation of [or] profession, Mr Treacy said, would the retention of a person convicted of murder be contemplated. He suggested that the British Army was the "only official army in the world that would allow convicted murderers to remain within its ranks". The decision to allow the soldiers to resume their careers in the army indicated that the taking of life in Northern Ireland was considered by army authorities to be less serious than elsewhere in the United Kingdom, Mr Treacy said. Judged objectively, it was insupportable.
4. The Board had regard to matters that were inconsistent with the findings of the trial judge.
The Board found that no amount of training could prepare the guardsmen for every eventuality. Mr Treacy submitted that this indicated that the Board had concluded that the soldiers had not been trained to deal with the situation in which Mr McBride lost his life and that this conclusion had influenced their decision to allow the guardsmen to resume their army careers. The conclusion that they had not been trained to deal with such an incident was, he claimed, at odds with the finding of the trial judge who concluded that a Sergeant Swift had shouted to the two guardsmen "Don't shoot" - see page 92 of the judgement. In any event, Mr Treacy argued, the matter of training was an obvious irrelevance. No training was required to inform the soldiers that it was morally and criminally wrong to shoot someone in the back when he posed no threat and when the soldiers were aware (as the trial judge had found they were) that the deceased posed no threat.
5. The Board took account of irrelevant considerations
Mr Treacy submitted that the finding of the Board that the soldiers were young and relatively inexperienced was in conflict with the facts. The age profile of most soldiers at the material time was between 18 and 21. When Mr McBride was killed, Fisher was 24 and Wright 19; Fisher had almost three years experience and Wright two years. In any event, Mr Treacy said, this could not qualify as an exceptional circumstance. The age and the amount of experience that the soldiers had were entirely unexceptional.
The finding made by the Board that "the threat of coffee jar bombs was very real" was wholly irrelevant to the matters that the Board had to consider, Mr Treacy claimed. This might have been material if the soldiers had been guilty of an error of judgment. It should not have been taken into account when, as the trial judge held, Fisher did not believe that Mr McBride had a coffee jar bomb and Wright claimed that he had opened fire because he heard a shot, not because he was fearful that a coffee jar bomb might be thrown.
The conclusion of the Board that Wright's concern for Mr McBride's children and that Fisher's regret about the death were genuine should not have featured in the consideration of the case, Mr Treacy argued. The outstanding feature of their reaction to their conviction was a lack of acceptance of its correctness, he said. No authentic remorse had been expressed by either of the guardsmen. Their attitude ought to have counted against them rather than in their favour, he argued.
It was further submitted that the Board had been wrong to regard the lack of a criminal record as an exceptional matter. Mr Treacy suggested that this should be regarded as the norm rather than an exceptional circumstance. Finally, on this aspect of the case he suggested that the Board's conclusion that the guardsmen would not repeat the offence because they had learnt a lasting and bitter lesson was "mystifying". The reaction of the guardsmen, encouraged by their senior officers, was, said Mr Treacy, one of resolute refusal to accept responsibility for their crime. They had not learnt a lesson of any effect, he claimed. It was illogical to suggest that they would never commit a crime such as this again.
6. Bias
In the course of the hearing on 29 August 2000, General Jackson disclosed that he commanded 39 Brigade. The battalion to which the guardsmen belonged joined 39 Brigade in Northern Ireland. Before that happened, General Jackson had moved to another post. The applicant claimed that this created a real danger or reasonable apprehension of bias on the part of the general and that the decision of the Army Board was thereby vitiated.
7. Jurisdiction of the Army Board
Paragraph 9.404 (d) of the Queen's Regulations for the Army 1975 provides: -
"A soldier is to be discharged if he has been sentenced:
(1) by a civil court or by court-martial to imprisonment (including a suspended sentence, but not a suspended committal) or to detention or to any other form of custodial sentence;
(2) by a court-martial to a period of detention which on confirmation is for 12 months or more.
If in the opinion of the commanding officer there are exceptional reasons that make retention of the soldier desirable then the case is to be submitted with valid and explicit reasons to the Director of Manning (Army) Ministry of Defence for a decision. The case is to be forwarded through the immediate superior headquarters with copies going to the next higher headquarters when this has been so directed. Where a case to an immediate headquarters is not supported it should be sent to the next higher headquarters for further comment before being sent to the Director of Manning (Army) Ministry of Defence (M2 (A)) should be informed in advance by the commanding officer of any such cases that are controversial or high profile so that, if necessary, direction can be given for the case to be staffed through the full chain of command."
It was submitted that the triggering of the procedure for the retention of the guardsmen in the army (the opinion of the commanding officer that there were exceptional reasons) was not present in this case. The commanding officer had not expressed any opinion, much less the requisite opinion, Mr Treacy said. The Army Board did not have the necessary jurisdiction to deal with the guardsmen's case, therefore.
Procedural Impropriety
On behalf of the respondents Mr Burnett QC argued that neither the Ministry of Defence nor the Board was under any obligation to involve the applicant in its proceedings. The intimation to her that she would be informed of the material that the Board would consider and that it would receive her representations was a concession made as a matter of courtesy. The Board could not thereby be fixed with a duty to allow Mrs McBride to participate in the oral hearing held by the Board or to ensure that all the representations that she wished to put before the Board were considered by them. Mr Burnett further argued that decisions on the procedural arrangements for the Board's deliberations could properly be taken by the secretariat rather than the Board itself.
The task that the Board was required to perform was not in the nature of adjudication in an adversarial proceeding. Its role was to investigate whether there were circumstances that could justify taking the exceptional course of allowing the guardsmen to remain in the army notwithstanding their conviction for murder. This called for an investigative or inquisitorial approach in my opinion. The decision to allow the applicant to make representations in writing rather than oral submissions is to be judged against this background. In this context the decision in Cheall v APEX [ 1983 ] 2 AC 180 is relevant. In that case the plaintiff, a security officer for a motor manufacturing company, was secretary of the local branch of the union ACTSS. He resigned from that union and joined APEX. He failed to state on his application form that he had been a member of the ACTSS. In breach of the TUC Disputes Principles and Procedures known as the Bridlington principles, APEX had failed to inquire whether the plaintiffs former union objected to the transfer prior to accepting the plaintiff into its membership. The TUC disputes committee found that APEX had contravened the Bridlington principles and directed it to exclude the plaintiff and to advise him to rejoin his former union. The plaintiff, who had not at any stage of the dispute been accorded a hearing, brought an action for a declaration that the notice terminating his membership of APEX was invalid. It was contended on his behalf that he was entitled to make representations before the disputes committee. Rejecting this argument, Lord Diplock said: -
"This contention did not find favour with any of the judges in the courts below: the only parties to the dispute that was before the disputes committee were the trade unions concerned. They, and they only, were entitled to make representations written or oral to the committee. Decisions that resolve disputes between the parties to them, whether by litigation or some other adversarial dispute-resolving process, often have consequences which affect persons who are not parties to the dispute; but the legal concept of natural justice has never been extended to give such persons as well as the parties themselves rights to be heard by the decision-making tribunal before the decision is reached. If natural justice required that Cheall should be entitled to be heard, there could be no stopping there; any other member of either union who thought he would be adversely affected by the decision, if it went one way or the other, would have a similar right to be heard. To claim that this is a requirement of "fair play in action" (to borrow Sach L.J.'s description of natural justice in Edwards Society of Graphical and Allied Trades [ 1971] ch. 354, 382) would be little short of ludicrous."
This decision must, of course, be considered in light of the later case of Regina v Secretary of State for the Home Department, ex parte Doody and others [1994] 1 A.C. 531. In that case at page 534, Lord Mustill said, "What the public law concept of fairness requires depends on the context". In my judgement, there was nothing about the context of the decision to be taken by the Army Board that required that Mrs McBride be allowed to be represented or to make oral submissions. It is my view that the Board was right to allow her to make representations but I do not consider that fairness required that she be permitted to contribute to their deliberations beyond that. As I have said, the essential task of the Board was to decide whether exceptional circumstances existed that justified the retention of the soldiers in the army. While it was right that Mrs McBride should be allowed to inform the Board of how she would be affected by a decision to allow them continue their army careers, that is quite different from her being allowed to participate in the debate as to what constituted exceptional circumstances. This conclusion is in keeping, I believe, with the approach of the Court of Appeal in England per Glidewell in Regina v Life Assurance Unit Trust Regulatory Organisation, ex parte Ross [1993] Q.B. 17, 50: -
"1 accept that very frequently a decision made which directly affects one person or body will also affect, indirectly, a number of other persons or bodies, and that the law does not require the decision-making body to give an opportunity to every person who may be a affected however remotely by its decision to make representations before the decision is reached. Such a principle would be unworkable in practice. On the other hand, it is my opinion that when a decision- making body is called upon to reach a decision which arises out of the relationship between two persons or firms, only one of whom is directly under the control of the decision-making body, and it is apparent that the decision will be likely to affect the second person adversely, then as a general proposition the decision body does owe some duty of fairness to that second person, which, in appropriate circumstances, may well include a duty to allow' him to make representations before reaching the decision. This will particularly be the case when the adverse effect is upon the livelihood or the ability to earn of the second person or body."
I accept without hesitation that Mrs Bride is crucially concerned about whether these guardsmen, who are responsible for the death of her son, should be permitted to remain in the army. I also accept that she is owed a duty of fairness by the Board to allow her to make representations on how she will be affected by their return to army careers but I cannot accept that fairness requires more than this. In these circumstances, the refusal to allow Mrs McBride to make oral submissions and to provide her with the submissions made on behalf of the guardsmen cannot be challenged.
Different considerations arise in relation to the refusal to place before the Board the material contained in the letter from Madden & Finucane of 19 Apri1 2000. As I have recorded above, the 'Ministry of Defence had indicated in its letter of 21 December 1999 that the Board would consider any representations the solicitors wished to make on behalf of Mrs McBride why the guardsmen should be discharged. That letter did not impose a deadline. The letter received by the Ministry containing Mrs McBride's personal submission and those from CAJ, Amnesty and NIHRC came, not from Madden & Finucane, but from the Pat Finucane centre. Moreover, it is now clear that, although the Ministry cited delay and unwillingness to disrupt the Board's deliberations as the reasons for not referring the representations contained in the letter from Madden & Finucane to the Board, in fact the Board had a number of preliminary issues still to determine. There was no reason that it could not also have been considered this matter. [sic]
I have concluded that, as a result of the undertaking given to Madden & Finucane, Mrs McBride enjoyed a legitimate expectation that they would be permitted to make representations on her behalf. I am also of the view that the Ministry of Defence was wrong to refuse to consider placing before the Board the further material contained in the letter of 19 April 2000. I have reached that conclusion for a number of reasons. As I have said, Mrs McBride had been given an undertaking that her solicitors would be allowed to make representations on her behalf. They had not been told that the representations had to be provided by a certain date. An ongoing exchange continued as to the material that would be provided to the applicant. The Board was still considering preliminary issues. It could easily have accommodated the further representations submitted with the letter of 19 April.
The secretariat to the Board was entitled to take decisions as to the material to be submitted to it, however. I do not accept the applicant's argument that only the Board could decide which material it would consider The secretariat was well aware of the issues facing the Board and it was its job to decide on the relevance of the information that was to be presented. If it had considered whether to place the material contained in the letter of 19 April before the Board, it would have been entitled to conclude - and in my view would inevitably have concluded - that this material was either extraneous to the submissions that might properly be made on Mrs McBride's behalf or had already been covered by the letters submitted with the letter from the Pat Finucane centre. I do not consider that the material that was sought to be presented by the letter of 19 April 2000 added anything of relevance to the case that could properly be made for Mrs McBride. I am satisfied that the Ministry, if it had decided to consider whether to refer the material to the Board, would have concluded that it contained no fresh information on any subject on which the Board required to take a decision. I am also satisfied, from my consideration of the Board's reasoning, that, had it been provided with the material contained in the letter, no different outcome would have accrued. I have concluded, therefore, that the failure of the Ministry to refer the material to the Board is not susceptible to judicial review.
The Convention arguments
The European Court of Human Rights has consistently emphasised the fundamental nature of the right to life guaranteed by Article 2 of the Convention. In McCann v United Kingdom [ 1995 ] ECHR at paragraphs 145 to 147 the Court said: -
"146. The Court's approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Soering v. the United Kingdom judgement of 7 July 1989, Series A no. 161, p. 34, para. 87, and the Loizidou v. Turkey (Preliminary Objections) judgement of 23 March 1995, Series A no. 310, p. 27, par . 72).
147. It must also be borne in mind that, as a provision (art 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention - indeed one which, in peacetime, admits of no derogation under Article 15 (art. 15). Together with Article 3 (art. 15+3) of the Convention, it also enshrines one of the basic values of the democratic societies making up the Council of Europe (see the above- mentioned Soering judgment, p. 34, para. 88). As such, its provisions must be strictly construed."
It has also long been recognised that be effective the fundamental right to life must be complemented by a set of procedural safeguards whose purpose is to reinforce the efficacy of the substantive guarantees by ensuring the effective implementation of domestic laws which forbid the taking of life and, in those cases involving State agents or bodies, ensuring that they are rendered accountable for deaths brought about by their actions. In Jordan v United Kingdom [2001] ECHR 24746, ECtHR-
described the nature of Article 2 rights in this way: -
"105. The obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to "secure to everyone within [its jurisdiction] the rights and freedoms defined in [the] Convention", also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force (see, mutatis mutandis, the McCann judgement cited above, p 49, para 161, and the Kaya v Turkey [1998] ECHR 22729/93, judgement of 19 February 1998, Reports of Judgements and Decisions 1998-I, p 324, para 86 of the latter reports). The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and in those cases involving State agents or bodies to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see, for example, mutatis mutandis, Ilhan v Turkey [GC] [2000] ECHR 22277/93, ECHR 2000-VII, para 63)."
The applicant's argument in the present case resolves to the proposition that a further species of safeguard is required. Not only must there be an effective investigation into the circumstances of the deceased's death but, where appropriate, there must also be an open acknowledgement that the death was wrongful. Furthermore, the applicant argues, anything that detracts from the official recognition of the fact that the deceased was wrongly killed is outwith Article 2. In the present case, it is suggested that the decision of the Army Board to allow the guardsmen to continue in the service derogates from the authority of the pronouncement of the men's guilt and is therefore a violation of Article 2.
The respondents make several answers to this argument. Firstly they say that the applicant is not a victim and therefore is not entitled to assert a violation of Article 2 even if that could be established. Secondly they claim that the procedural safeguards that complement the substantive right under Article 2 do not include a right to have those responsible for the death punished beyond the sentence of the court. The procedural safeguards implicit in Article 2 are, the respondents say, confined to the proper and effective investigation of the circumstances surrounding the death of the deceased. In this case a fully compliant Article 2 investigation had taken place in the form of the criminal trial of the two guardsmen. Thirdly the respondents challenge directly the claim that by permitting the guardsmen to resume their careers the Army Board has diminished the effectiveness of the procedural safeguards of Article 2. The Board had made it abundantly clear that its members did not accept the exculpatory statements of the soldiers and that they accepted without qualification the findings of the trial judge.
There is nothing in the jurisprudence of the Strasbourg court that supports the applicant's claim that this additional safeguard must be in place. The essence of the procedural rights implicit in Article 2 is that they support the effective implementation of domestic laws that forbid the taking of life and that, in those cases involving State agents or bodies, they ensure that those responsible for the death be made accountable for their actions. That is why an effective official investigation of the death is required. It is to ensure that those who have been guilty of the killing are detected and punished. Thus the objective of protecting life is achieved. Those who take life wrongfully are caught and brought to account. In this way others are discouraged from future misconduct that would threaten life.
This essential purpose is not realised by inflicting on those who wrongly take life, punishment beyond that which is imposed by due process of law. The imperative of Article 2 is to protect life by taking all reasonable measures to prevent unlawful killing and, where such killing occurs, to identify and punish the perpetrators according to law. Once this has been carried out, the objective of Article 2 has been achieved. I do not consider, therefore, that Article 2 requires, as a matter of principle, that those found guilty even of the most serious offence of murder be forever debarred from serving as members of the armed forces.
In any event, the decision of the Board does not, in my view, derogate from or undermine the finding of guilt that has been recorded against the guardsmen. On the contrary, the Board was at pains to emphasise that it accepted without qualification the findings of the trial judge and in paragraph 19 of its decision it expressly recorded its acceptance of the propositions that (a) the soldiers had no justification for firing; (b) that they were aware that there was no justification for opening fire; (c) that they were not operating in a "panic situation" that called for a split second decision; and (d) that they had lied about critical elements of their version of events. These statements confirm and reinforce the finding of guilt rather than detract from it.
In light of my conclusions on the applicant's arguments founded on the Convention, it is unnecessary for me to deal with the argument of the respondents that the applicant is not a victim for the purposes of the Human Rights Act. I should say, however, that I would have found it difficult to accept that claim if the applicant had been able to establish that there had been a violation of any of the articles of the Convention.
I can deal briefly with the applicant's alternative argument founded on Article 14 of the Convention. In Rasmussen v Denmark [1984] ECHR 8777 ECtHR said: -
"29. Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it has an autonomous meaning - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, inter alia, the Van der Mussele judgement of 23 November 1983, Series A no. 70, p. 22, para. 43)."
In order to qualify for Article 14 protection, therefore, a claim must depend on the violation of a substantive provision of the Convention or come within the ambit of that provision. In dealing with the subject of "coming within the ambit" Lester & Pannick, Human Rights Law and Practice state: -
"4.14.6 A claim under Article 14 cannot, however, succeed unless the facts of the case fall within the 'ambit' of one or more of the substantive articles. This test will be satisfied if the 'subject-matter of the disadvantage [complained of].., constitutes one of the modalities of the exercise of a right guaranteed' [National Union of Belgian Police v Belgium (1979-80) 1 EHRR. 578, ECtHR, para 45] or the measures complained of are 'linked to the exercise of a right guaranteed' [Schmidt and Dahlström v Sweden (1976) 1 EHRR 632, ECtHR, para 39]. Thus, in Petrovic v Austria, a claim relating to parental leave allowance was held to come within the scope of art 8 of the Convention because by granting such an allowance states were 'able to demonstrate their respect for family life within the meaning of [that article]': art 14 (taken together with art 8) was therefore applicable."
I do not consider that the Board's decision could be said to be either "one of the modalities of the exercise of a right guaranteed" or "linked to the exercise of a right guaranteed". I do not consider that it comes within the ambit of Article 2, therefore.
Even if I had been prepared to hold that the matter came within the ambit of Article 2, I consider that it has not been shown that the decision of the Board amounted to unequal treatment of the applicant or the deceased. It would be necessary for the applicant to fulfil a number of requirements before such a conclusion was possible. It would be essential to show that the applicant (or the deceased) had been treated substantively differently and less favourably than others; that the basis of the distinction was a personal characteristic or status; and that the persons with whom the comparison was made were in an analogous situation. These requirements are cumulative - see paragraph 17.92 Clayton & Tomlinson, The Law of Human Rights. The evidential support necessary to establish each of these elements is simply not present. On that ground also I would have refused judicial review under this head.
Irrationality
A conclusion as to the reasonableness or rationality of the decision of the Army Board depends on the context in which the examination of the decision takes place. Some authorities suggest that the intensity of review of the decision will depend on whether a fundamental human right is at stake. But what does intensity of review mean? Does it mean that the decision is to be scrutinised more rigorously or that less leeway is available to the decision- maker than would be the case if he were reaching a decision on a matter that could not be described as a fundamental human rights issue? In either case it is questionable that the singular circumstance that a Convention right is at stake should call for a more rigorous supervision than would be applied to a decision which affects an individual in a critical way but which does not involve a Convention right. It is of course true that many cases involving Convention rights require the supervising court to address the question of the proportionality of the decision under challenge. This calls for a difference in the method of supervision but not, I think, a difference in the level of intensity of the scrutiny. There does not appear to me to be any principled reason that a decision that does not involve a Convention right should be the subject of less intense scrutiny solely on that account. The level of intensity of review must depend on the nature of the interest involved and the type of decision that requires to be taken.
This is - at least implicitly - the stance taken by the House of Lords in R v Secretary of State for the Home Department ex parte Daly [2001] UKHL 26. In that case Lord Steyn, dealing with possible differences of approach between traditional Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) grounds and that appropriate to consideration of a Convention right, said: -
"The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so (see [2000] PL 671 at 681). To this extent the general tenor of the observations in R (Mahmood) v Secretary of State for the Home Dept [2001] 1 WLR 840 are correct. And Laws LJ (at 847 (para 18)) rightly emphasised in Mahmood's case 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving convention rights. In law context is everything."
The statement, "context is everything" has been referred to as "the most quoted dictum in all of administrative law" - see Persey and others v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 Admin and it is not surprising that this should be so. One may postulate that the traditional reticence of the courts to intervene in administrative decisions, characterised by the Wednesbury case, requires adjustment to take account of contemporary experience and it may well be that the incorporation of the European Convention on Human Rights into our domestic law, importing as it does the principle of proportionality, has helped to allow a loosening of the straitjacket of that doctrinaire approach. In Daly Lord Cooke of Thorndon forecast the demise of Wednesbury unreasonableness as the yardstick of reviewability in this passage: -
"Lord Steyn illuminates the distinctions between 'traditional' (that is to say in terms of English case law, Wednesbury (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680 ,[1948] 1 KB 223) standards of judicial review and higher standards under the convention or the common law of human rights. As he indicates, often the results are the same. But the view that the standards are substantially the same appears to have received its quietus in Smith and Grady v UK (1999) 29 EHRR 493 and Lustig-Prean and Beckett v UK (1999) 29 EHRR 548. And I think that the day will come when it will be more widely recognised that the Wednesbury case was an unfortunately retrogressive decision in English administrative law, in so far as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd."
Whether the day has arrived when one may consign the principle of Wednesbury irrationality to history is perhaps not of critical importance in this case. What is important is that the level of scrutiny to which the decision under challenge here should be subject is determined by the nature of that decision and the context in which it is taken. Both Lord Steyn and Lord Cooke recognised that the context of an impugned decision will be of at least substantial significance in any assessment of its validity. The nature of the decision under challenge here, its importance to the applicant and to the guardsmen and its implications for the public at large are all factors of considerable significance in any review of the Army Board's conclusion.
It is my view that the correctness of that conclusion calls for anxious and searching inquiry. Two young men convicted of murder have been permitted to continue their career in the armed forces of the country. They have been condemned by a very experienced judge as having put forward a deliberately lying defence. He decided that they did not perceive any threat to themselves or to any of their colleagues when they consciously discharged aimed shots at the retreating figure of Peter McBride. They concocted and maintained a mendacious version of events in order to provide cover for their actions which they knew that they could not otherwise justify. These findings are damning, but do they inevitably exclude the possibility of a reasonable decision that the soldiers should be allowed to resume their army careers?
The search for an answer to this question must include, in my opinion, consideration of the fact that all soldiers who have been convicted of murder in Northern Ireland have been allowed to return to the army after serving sentences of imprisonment while all other instances of convicted soldiers being allowed to do so have involved relatively minor offences. It must also include consideration of the army's policy in relation to drugs offenders. It appears that no soldier convicted of a drugs offence, however serious, will be permitted to resume a career in the army. Regard must be had to the high probability that anyone convicted of murder could not normally hope to be recruited to any of the security services and would, as Mr Treacy pointed out, be ineligible to hold a firearms licence or even a public service licence.
These considerations, while undoubtedly militating strongly against the retention of the guardsmen, do not, in my opinion, remove the decision to allow them to resume their careers from the range of available decisions. Although they had no justification for firing and were aware of that and although they lied as to the reasons for opening fire, I cannot conclude that no reasonable decision-maker could decide that they be allowed the opportunity to resume their careers. While they were not young by army standards, the view could be taken that they were not fully mature men. Lying about the circumstances, although reprehensible, is perhaps not an unnatural reaction given the position in which they found themselves. Ultimately, the question perhaps resolves to this: should the guardsmen be forever debarred from serving in the army because of what they did. One could not, I think, dispute the validity of an opinion that they should be; equally, however, it would be difficult to deny that a contrary view was tenable. Not without misgivings, therefore, I have concluded that the decision of the Army Board cannot be condemned as unreasonable.
Did the Army Board take into account matters that were inconsistent with the findings of the trial judge?
The applicant claims that the finding of the Army Board that no amount of training could prepare the guardsmen for every eventuality implied that the soldiers had not been trained to deal with the situation in which Mr McBride lost his life. Mr Treacy suggested that this was at odds with the evidence that Sergeant Swift had shouted at them not to fire.
It appears to me that this argument reads too much into the relevant finding of the Board. It had concluded that while the army undertook a considerable amount of training to prepare soldiers for duty in these circumstances, it could not prepare an individual for every eventuality. The Board simply acknowledged that the precise circumstances of this incident could not have been anticipated and dealt with in training. The guardsmen therefore had to draw on such training as they had received and their own initiative to deal with the situation as it unfolded before them. I do not accept that the shouted instruction of Sergeant Swift could be regarded as training and I do not consider, therefore, that the finding of the Board, in as much as it implied that the guardsmen had not received training as to how to deal with the precise circumstances of the incident, is in conflict with the finding of the trial judge.
Mr Treacy's more substantial point on this issue was that the question of training was irrelevant because training was not required to show that it was wrong to fire aimed shots at a retreating figure that presented no threat. I do not accept this argument. It appears to me that training is emphatically required to instil in the minds of soldiers that a person running away from a checkpoint should not be fired on unless he presents an immediate threat to them or their colleagues. The finding of the Board does not imply that these guardsmen did not receive such training. It merely records that the training that they did receive inevitably did not replicate precisely the circumstances that occurred on the day of the incident. That was, in my view, an observation that was both pertinent and unexceptionable.
Taking into account irrelevant considerations
It was submitted that none of the individual factors adumbrated by the Board in paragraph 18 of its findings could qualify as an exceptional circumstance. For instance it was suggested that the fact that the guardsmen were young or that they did not have a criminal record could not be regarded as exceptional. It appears to me, however, that the Board was entitled to have regard to the cumulative effect of the various matters that they considered in deciding that exceptional circumstances were present.
The Board was entitled, in my opinion, to have regard to the youth and relative inexperience of the guardsmen. While they may not have been significantly younger than most soldiers in their company they were still young men and did not have lengthy service records in September 1992. If they were mature men with lengthy service in the army at the time of the shooting these factors might well have told against them significantly. The fact that they were not must surely be a matter that the Board was entitled to take into account.
The finding made by the Board that "the threat of coffee jar bombs was very real" could only have been material if the soldiers had been guilty of an error of judgement, Mr Treacy claimed. It was not open to the Board to take this into account because of the findings of the trial judge that Fisher did not believe that Mr McBride had a coffee jar bomb and Wright claimed that he had opened fire because he heard a shot.
There is nothing in the conclusion of the Board on this issue, however, which suggests that it believed that the possibility of Mr McBride having a coffee jar bomb played any part in the discharge of the shots. The reference to this (sic) coffee jar bombs in the Board's findings related to its view that the general security situation was tense and that this had led to heightened awareness on the part of the soldiers.
Mr Treacy's argument that the Board was wrong to have had regard to the expressions of regret by the guardsmen must be considered in light of the actual findings of the Board on this matter. It is true that the guardsmen did not accept that they had been guilty of anything other than an error of judgement and that they did not, as Mr Treacy contended, express remorse in the sense of acknowledging that they had been guilty of murder. The Board did not attribute remorse to them, however. It merely recorded that Wright had expressed concern about Mr McBride's children and that Fisher had voiced regret about the death. In my view, the Board was entitled to take these matters into account.
The Board was equally entitled in my view to conclude that the guardsmen had "learnt a bitter lesson" and that there was no danger of a repetition of the offences. It is true that they continue to assert their innocence of the charge of murder and seek to persuade the Criminal Cases Review Commission to refer their case to the Court of Appeal. The lack of acceptance of their guilt is not, however, necessarily inconsistent with their having learnt from their experience. Whether they believe themselves to be innocent or not, the experience of having been convicted and served a sentence of imprisonment is bound to have had some effect on the guardsmen. It was open to the Board to conclude that this effect was that they would not repeat the conduct that led to their incarceration
On the issue of the regret and concern expressed by the soldiers the Board had the opportunity to hear and observe them give evidence. I cannot accept that it was not open to the Board to form an impression that the guardsmen were genuine in their expressions of regret and concern and to reach the conclusion that these were factors that could be taken into account in deciding that there were exceptional circumstances that justified the retention of the soldiers in the army. I am not satisfied, therefore, that the Board has been shown to have taken into account any consideration that was irrelevant to its task.
Bias
In R v Gough [1993] AC 646, 668 Lord Goff of Chieveley said: -
"In my opinion, if, in the circumstances of the case (as ascertained by the court), it appears that there was a real likelihood, in the sense of a real possibility, of bias on the part of a justice or other member of an inferior tribunal, justice requires that the decision should not be allowed to stand."
Applying that test to the situation here I am entirely satisfied that there is no possibility of bias on the part of General Jackson. His connection with 39 Brigade had ended before the guardsmen's company joined that brigade in Northern Ireland. He had volunteered the information that he had had an association with 39 Brigade. It could not realistically be said that there was a real possibility of bias in those circumstances.
In Director of Fair Trading v The Proprietary Association of Great Britain (the Medicaments case), however, the Court of Appeal was invited to hold that the test in R v Gough should be construed as being equivalent to the "reasonable apprehension of bias" test favoured in Scotland arid most other common law jurisdictions. It was also submitted that, if the Gough test was different from this test, it required to be modified to conform to the reasonable apprehension test in the light of the jurisprudence of the European Court of Human Rights - see Piersack v Belgium [1982] 5 EHRR 169; De Cubber v Belgium [1984] 7 EHRR 236; Hauschildt v Denmark [1989] 12 EHRR 266; Borgers v Belgium [1993] 15 EHRR 92; and. Gregory v United Kingdom (1997) 25 EHRR 577. In Morris v United Kingdom [2002] ECHR 38784/97 the Court stated (at paragraph 58): -
"As to the question of "impartiality", there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect…"
This line of authority was considered by the Court of Appeal in the Medicaments case where it concluded: -
"When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."
Applying that test to the present circumstances, I do not consider that there is any possibility that a fair-minded and informed observer would conclude that General Jackson was biased on the basis of the remote connection that he had with the brigade with which the soldiers' company became associated after the general had left to take up another post.
Jurisdiction of the Army Board
It is common case that the soldiers' commanding officer did not recommend that the soldiers be retained in the army. The claim by the applicant that this robbed the Army Board of jurisdiction must be considered against the background that the guardsmen are not automatically discharged from the army on conviction. Rather, paragraph 9.404 (d) of the Queen's Regulations for the Army 1975 provides that a soldier "is to be discharged if sentenced by a civil court ...". An act of discharge is required. This is made clear by section 11 (3) of the Army Act 1955, which provides: -
"Except in pursuance of the sentence of a court- martial (whether under this Act the Naval Discipline Act or the Air Force Act 1955), a soldier of the regular forces shall not be discharged unless his discharge has been authorised by order of the competent military authority or by authority direct from Her Majesty; and in any case the discharge of a soldier of the regular forces shall be carried out in accordance with Queen's Regulations."
By virtue of Regulation 3 of and Schedule 1 to the Army Act 1955 (Part 1) (Regular Army) Regulations 1992, the competent military authority for the purpose of discharging a soldier for misconduct in accordance with the Regulations is either the Brigade Commander; any officer superior in command to the Brigade Commander; the Director of Manning (Army); the Army Board or the Defence Council. The commanding officer is not competent to order the discharge of a soldier. For a valid discharge to take place, one of those designated "competent military authority" must consider the case and authorise the discharge. An Army Board is such an authority. I consider, therefore, that it had jurisdiction to consider the application to discharge the guardsmen and that this was not dependent on a recommendation being made that they be retained by their commanding officer. I am reinforced in that view by the preamble to Queen's Regulations which requires that they be interpreted "reasonably and intelligently bearing in mind that no attempt has been made to provide for necessary and self-evident exceptions". I have concluded, therefore, that the Board had jurisdiction to order the retention of the guardsmen in the army.
Conclusions
After careful consideration of all the grounds on which the judicial review challenge was made, I have reached the view that none has been made out. The application for judicial review is dismissed.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
IN THE MATTER OF AN APPUCATION BY JEAN McBRIDE FOR JUDICIAL REVIEW
JUDGMENT
OF
KERRJ